Can we sell a tenanted flat before probate is granted?

I have been left a property in a will and would like to sell it as quickly as possible. The tenant is due to leave soon. Can we sell before probate is granted and while the tenant is still in the flat?

Question: My godfather left me a penthouse flat in his will. The property is currently occupied by a tenant who is due to leave in two months’ time. My wife is pregnant and it would be great to get a quick sale before the baby arrives.

My godfather’s solicitor and I are the executors, but he reckons we can’t sell until probate is granted and the tenant has gone. My wife thinks this isn’t true and we can sell now. Who is right?

Answer: The flat can be marketed before the grant of probate is issued and when the tenant is in occupation. Your co-executor is being cautious.

Contracts cannot be exchanged until the grant of probate is available, but a suitable offer can be accepted and the conveyancing process can go ahead. Sometimes exchange of contracts does take place when the tenant is still in occupation, but on the basis that the tenant will vacate prior to completion.

This can be risky as problems arise if the tenant fails to leave, which means that the seller cannot give vacant possession on completion.

To avoid this, contracts are not exchanged until a tenant has vacated the property — unless the buyer is purchasing subject to the tenancy.

Remember that the tenant may not be too keen to allow prospective buyers to view the flat. Look at the tenancy agreement to see if it requires the tenant to allow access for viewings.

Tell your co-executor you understand his concerns, but wish to progress the sale as much as possible so that once the grant of probate is issued and the tenant leaves, contracts can be exchanged and the sale completed.

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If you have a question for Fiona McNulty, please email legalsolutions@standard.co.uk or write to Legal Solutions, Homes & Property, London Evening Standard, 2 Derry Street, W8 5EE. We regret that questions cannot be answered individually but we will try to feature them here. Fiona is legal director in the real estate group of Foot Anstey LLP in Exeter (fiona.mcnulty@footanstey.com)

These answers can only be a very brief commentary on the issues raised and should not be relied on as legal advice. No liability is accepted for such reliance. If you have similar issues, you should obtain advice from a solicitor.